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TMI Blog1990 (1) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... A few months after the death of Thirunavukkarasu Chettiar, his widow, Umayal Achi, adopted Chidambaram on May 1, 1968, and the adoption was evidenced by a deed. In the course of the proceedings relating to the chargeability to duty of the estate of the deceased Thirunavukkarasu Chettiar under the provisions of the Act, the accountable person put forward the plea that the adoption of Chidambaram by Umayal Achi related back to the date of death of the deceased Thirunavukkarasu Chettiar and that the property left behind by the deceased Thirunavukkarasu Chettiar should, therefore, be treated as belonging to the Hindu undivided family of the deceased, his widow and the adopted son. In other words, it was claimed by the accountable person, as could be gathered from the assessment proceedings, that in view of the adoption made by the widow, only half the value of the half share of the deceased in all the properties of the erstwhile Hindu undivided family and half the value of the other properties owned by him separately on the date of his death could be subjected to estate duty. The Assistant Controller of Estate Duty negatived this claim of the accountable person on the view that on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1970 SC 343 and strongly relied on by the accountable person was clearly distinguishable. Ultimately, the Tribunal held that the deceased had full power of disposition over the property left behind by him and that the value of that was includible in his estate under section 6 of the Act. That is how the question of law referred to at the outset has arisen. Learned counsel for the accountable person contended that the adoption of a son, though by the widow, should be regarded as having been done on behalf of the deceased and his widow and on such adoption, it would relate back to the date of death of the deceased, thereby enabling the adopted son to become a member of the coparcenary along with his adoptive father and entitled to his share as the son of the deceased and that the authorities below were in error in holding that the adopted son cannot, under proviso (c) to section 12 of the Hindu Adoptions and Maintenance Act, 1956, divest the estate vested in the widow, as there is no question of vesting or divesting of the property, for the introduction of member into the joint family by adoption, at best may have the effect of merely decreasing the share of the rest of the memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ener may now be adverted to. Such a person is entitled to dispose of the coparcenary property, as if it was his separate property, so long as he remains the sole surviving coparcener and he may alienate or encumber the coparcenary property, without any legal necessity or family benefit. As a sole surviving coparcener, the deceased might have also disposed of the properties under section 30 of the Hindu Succession Act, 1956. Therefore, considered from the point of view of the power of disposal failing within section 6 of the Act, undoubtedly, the deceased, at the time of his death, was competent to dispose of the entire property. Whether the adoption of a son by the widow to her deceased husband and herself would in any manner affect the nature of the property or even the power of disposal over the property, may now be considered. In this case, the deceased had held the property at the time of his death on October 19, 1967, as sole surviving coparcener and had left behind him his widow, as his sole heir on the date of his death. Under sections 6, 8, 9 and 14 of the Hindu Succession Act, 1956, the widow of the deceased, as his only heir, became entitled to the property and the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and that meant that the joint family continued with a sole surviving coparcener and his sons as well as the sons of another deceased brother and the widows and into such a family, two more adopted sons were inducted and it was under those circumstances, the Supreme Court held that, having regard to the continuance of the joint family which held the estate, there was merely an addition of more members to it and there was no fresh vesting or divesting of the estate in or by any one. Considering the factual backdrop in which that decision was given, that principle will not have any application in this case. Again, in Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe, AIR 1988 SC 845, the adoption of the son, Pandurang, was made by the widow of a deceased brother during the lifetime of the other brother, Dharma, who was the sole surviving coparcener of the Hindu undivided family, as it then was, and the Supreme Court, after setting out the legal incidence of the property held by a sole surviving coparcener, applied the principles of the decision in Vasant v. Dattu, AIR 1987 SC 398, to hold that there was no vesting of the joint family property in Dharma on the death of the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n adoption. The appeal was dismissed and Bhagwani, the widow of Ramji Dass, also died and thereafter the reversioner brought a suit for recovery of possession of the properties which had been earlier mortgaged and gifted. The adoption made by Bhagwani was also disputed and it was stated that even if that adoption was valid, the adopted son could not succeed to the properties of Ramji Dass. The trial court dismissed the suit holding that the adoption was valid and that the adopted son was entitled to succeed to the properties of Ramji Dass so that the reversioner could not claim any rights therein and this view was also upheld on appeal by the High Court. Before the Supreme Court, it was contended that under the provisions of the Hindu Adoptions and Maintenance Act, 1956, in the case of an adoption by the widow, the adopted son becomes the son of the widow only and, cannot be regarded as the son of her deceased husband. In repelling this contention, the Supreme Court pointed out that the actual adoption, though by the female, will be not only to herself, but also to her husband, who is dead, and on such adoption by widow, the adopted son should be deemed to be a member of the family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adoption made by a widow after the death of her husband on the properties inherited by the widow as the heir of her husband. One Somasundara Udayar died leaving behind his widow and two daughters and on his death, his properties were inherited by his widow and were in her possession when the Hindu Succession Act, 1956, came into force. After some time, she adopted a son and subsequently settled some properties on one of her daughters, and the settlement deed was challenged by the adopted son even during the lifetime of the adoptive mother. The suit was dismissed by the trial court and that was also affirmed on appeal. But on second appeal, the High Court reversed the decision of the courts below holding that the adoption related back to the date of the death of Somasundara Udayar and, therefore, the widow was incompetent to make the impugned alienations. In considering the correctness of this conclusion of the High Court, the Supreme Court pointed out that the rights conferred on a Hindu female under section 14(1) of the Hindu Succession Act, 1956 , are not restricted or limited by any rule of Hindu law and that that provision makes a clear departure from the Hindu law texts or rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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